HL Deb 27 November 1986 vol 482 cc647-53

3.25 p.m.

The Lord Chancellor

My Lords, I rise to move, That this Bill be now read a second time.

It will be familiar ground to your Lordships that in recent years, as part of our programme of law reform, I have tried each year to include at least one important item relating to family law. This Bill introduces the subject of illegitimacy. As your Lordships will already know, that subject has twice come before the Law Commission for England and Wales and once before the Scottish Law Commission. The purpose of the Bill is to enact the recommendations of the first report of the English Law Commission (Law Commission No. 118) in the light of the modifications proposed in the second report (No. 157) which, in its turn, broadly welcomed the Scottish line of approach as contained in the Scottish Law Commission Report which followed shortly on Law Commission No. 118.

Broadly, the difference between the two approaches was that Law Commission No. 118 had recommended the use of the words "marital" and "non-marital" in relation to children born out of wedlock, whereas the Scottish Law Commission considered it preferable that labels of this kind were altogether unnecessary as well as undesirable and would in any case only rarely be used, and that in the comparatively rare cases where a distinction would require to be drawn it would be better to do so explicitly in relation to the matrimonial status of the parents at any relevant time and not by applying a label to the child.

That view was accepted by the English Law Commission in its second report and the Bill now before Lordships accordingly broadly represents the first report of the Commission, as modified in the direction of the Scottish view. That has already been enacted and thus has the additional advantage of approximating the English and Scottish laws of status to one another. I need hardly remind the House that the object of the reports and of the Bill is, so far as possible, to remove any avoidable discrimination against, or stigma attaching to, children born outside wedlock.

In the words of the second report, the policy underlying the recommendations is that to the greatest extent possible the legal position of a child born to unmarried parents should be the same as that of one born to married parents. That was set out at greater length in the report of the English Law Commission, No. 118, which I think I ought perhaps to summarise very largely in the words which the commissioners themselves used. They said they had not only been influenced by the comments received by the consultees of the working paper but that they had also been impressed by the significant movement, both in this country and abroad, against discrimination based on birth outside marriage. They said that judicial statements in this country have supported the view that the policy of modern legislation is to eliminate the differences between legitimate and illegitimate children, and there is also a considerable volume of published material urging reform in English law.

Anxiety, the commissioners added, had also been voiced in Parliament on a number of occasions about illegitimacy. They went on to say that on a wider international plane the United Kingdom has signed and ratified the Council of Europe Convention on the legal status of children born out of wedlock, which provides common rules designed to assimilate the legal status of children born outside marriage with the status of those born to a married couple. We have also signed and ratified the European Convention on Human Rights.

It is noteworthy, so the commissioners reported in 1982, that the European Court of Human Rights has held that laws discriminating against those born outside marriage are, unless justifiable on some special ground, inconsistent with the guarantees provided by the Convention. The commissioners also referred to the position taken in other countries—New Zealand, most of the Australian states and Switzerland, to mention but a few—to abolish the legal aspects of discrimination against non-marital children.

Having stated the policy of the Bill, I ought to say that, though it is comparatively short (33 clauses and 4 schedules) the importance of the subject may be illustrated by the fact that in the 12 months of the calendar year 1985, 126,000 children were born of parents who were not married to one another at the time of their birth.

I shall, of course, be conducting your Lordships through the precise proposals contained in the clauses of the Bill. But before I do so, let me begin in general terms by explaining the need for a Bill of this kind. So far as possible we want to eliminate both discrimination and stigma so far as it affects children born out of wedlock. There are forms of legal discrimination under existing law. First, there is the legal discrimination which directly affects the position of these children. The maintenance of such a child is one example. It is subject to special restrictions affecting the jurisdiction of magistrates' courts; for instance, no lump sum exceeding the rather paltry figure—if I may use that expression—of £500 may be awarded.

Secondly, such a child is subject to discrimination as regards its right of inheritance. The child cannot inherit on an intestacy from a brother or sister or any other collateral, and though it can inherit from a parent it cannot do so from any ancestor more remote. The child cannot be the heir to an entailed interest—for those of your Lordships who are interested in that rather esoteric term. The father of such a child is also subject to discrimination by the law in ways which may adversely affect the interest and welfare of the child itself. Even where—which is not particularly often—the father is awarded custody, no contribution by way of maintenance can be obtained from the mother, whatever her means.

The father's consent is not required for the adoption, nor is his consent required to the marriage of the child while a minor, unless he has already been granted custody or is its legal guardian. There is also procedural discrimination in the appropriate methods of procedure regarding maintenance which is held to produce an element of stigma.

Part I of the Bill is short and contains but a single clause. Subsection (1) applies both to enactments and to instruments passed or made after the commencement of the Act and provides that, in general, unless a contrary intention appears, relationships are to be construed without regard to the marital status of parents at the time of the birth. This reflects the Scottish approach. However, its full importance can best be seen in subsection (2) of Clause 1 in relation to Part II of the Bill. Your Lordships will note, however, in Clause 1 the special application of this principle to those legitimate or legitimated by the legislation of 1976 or otherwise and to adopted children.

The policy to be enacted in relation to future Acts or instruments by Part I is applied to certain specified past enactments in Clause 2 of Part II of the Bill, and only to those specified enactments. Clause 3 renders agreements between parents relating to parental duties enforceable if, but only if, they are found to be in the interests of the child. Clause 4 and following give the father of the child various rights which he does not at present enjoy. Clause 4 provides that the court may order that he enjoys (subject to contrary direction) jointly with the mother (if alive) or guardian all parental rights and duties. The courts will, of course, have a discretion as to whether or not to make such an order, and such an order will be made only if to do so is in the child's interest.

It is envisaged that a typical situation in which such an order might be made would be where the child's parents have been living in a stable relationship which is ended by the mother's death. The effect of an order vesting all the parental rights and duties in the father would effectively be to put the father into the same legal position in relation to the child as he would have been in had he been married to the mother at the relevant time.

The need for the ability to make such an order was emphasised in a recent case. The judge noted that, notwithstanding the recent spate of legislation in this field, no such order had been established. He described in rather colourful language the position of the father of an illegitimate child in this respect as being that of one, who is still left like a beached whale on the shore where the law first deposited him in 1971". Under the Guardianship of Minors Act 1971, a father is entitled to apply for custody of, or access to, his illegitimate child. He first became so entitled under the Legitimacy Act 1959.

Under this part of the Bill, the father of an illegitimate child is also given certain other rights in relation to that child. He will be able to apply for these rights only if he already has rights to custody or care and control over the child in question. There are six of these rights. First, there is the right to apply for the court's direction where the parents disagree on a question relating to the child's welfare. Secondly, there is the right to apply to become the child's guardian on the death of the mother. Thirdly, there is the right to appoint what is called a testamentary guardian. Fourthly, there is the right to object to a testamentary guardian appointed by the mother. Fifthly, the father's agreement is established as a pre-condition to the child's adoption or freeing for adoption. And, sixthly, the right of the father to give his consent to the marriage of a child of this nature under the age of 18 is extended.

As a further means of ensuring that the law has adequate machinery to give legal recognition to the family links between an illegitimate child and its father, whenever it is in the child's interests to do so, the Bill lays down two other provisions. I have already said that it is provided that all parents, whether married or not, are to be entitled to make legally binding agreements about the exercise of their parental rights over their child, and that such an agreement will been forced only if the court considers that to do so would be for the benefit of the child.

Secondly, the father of such a child who has actual custody of him is given certain rights as a "parent" under the Children and Young Persons Act 1969 and the Child Care Act 1980. It is considered that the creation of these rights strikes the right balance between the father's parental rights and the duties of the local authority. They also ensure that a father who, before a child is taken into care has had responsibility for its upbringing, is put in the same position as the mother. Apart from conferring additional rights on the father of a child born out of wedlock, Part II of the Bill also makes general provision for custody and access orders and for financial provision on behalf of the these children.

The Bill amends the Guardianship of Minors Act 1971 so that the courts will be able to make custody or access orders in relation to all children, whether or not born out of wedlock, either on the application of either parent; or, where a guardian has been appointed, to the exclusion of the surviving parent; or where there is a disagreement between joint guardians, one of which is a parent. When the court makes an order under these provisions it will in all cases apply the well-known principle that the child's welfare is to be the first and paramount consideration.

I turn now to the question of financial provision for these children. The Bill repeals the Affiliation Proceedings Act 1957. That Act remains a direct descendant of the old bastardy laws, whose object was to relieve the parish of the burden of child maintenance if that burden could be placed on the father. The repeal of this Act abolishes the separate and distinct procedure for enforcing provision for a child born out of wedlock by affiliation proceedings. The Bill provides that orders for financial provision for all children, irrespective of their parents' marital status, are to be obtained by proceedings under the Guardianship of Minors Act 1971, as amended.

Before dealing with these new provisions, I should like briefly to draw attention to various aspects of the Affiliation Proceedings Act 1957 which will disappear as a result of the repeal of that Act. First, there will no longer be a time limit of three years after the birth of the child for the bringing of financial proceedings in respect of children born out of wedlock. Secondly, there will no longer be any special rule of law requiring corroborative evidence that the putative father is the natural father of an illegitimate child. This peculiar requirement, which the Law Commission thought had no place in the civil law as distinct from the criminal law, dates back to the Poor Law Amendment Act, under which the overseers of the poor could recover from the putative father the cost to the parish of supporting the child. Thirdly, the child's mother will be able to apply for a financial provision order in respect of a child of this nature, notwithstanding that she is married to a man other than the child's father. Finally, the special avenue of appeal from the magistrates' court to the Crown Court will no longer be available, but will be the same as that of other people.

Under the Bill the High Court, the county courts and the magistrates' courts will all have jurisdiction to make orders for financial provision for these children, as they already have for other children. Magistrates' courts will cease to have exclusive jurisdiction.

The amendments to the Guardianship of Minors Act 1971 create an enhanced range of financial provision orders enabling' the High Court and the county court to order for the benefit of the child not only periodical payments, but also secured periodical payments, lump sums and transfers or settlements of property, without restriction as to amount. At present, as I have said, the magistrates' courts alone are empowered to order periodical payments and lump sums under £500. But it is thought that they are not appropriate tribunals to deal with the difficult questions of law that may arise on the transfer or settlement of extensive property.

As with orders for custody and access, the courts are empowered to make financial provision orders, either on the application of one of the child's parents; or, where there is a guardian, to the exclusion of the surviving parent; or where there is a disagreement between joint guardians one of whom is a parent. Additionally, provision is made for applications by children over the age of 18 whose parents are separated and who are undergoing further education or training, or who have special needs, such as would arise from some form of physical handicap.

Part III of the Bill deals with entitlement of a person born out of wedlock to certain property rights. This area of the law was last reformed by the Family Law Reform Act 1969. It made various changes which to some extent improved the position of a person born out of wedlock. However, that Act did not remove all the legal disadvantages which affect such a person. Part III remedies this deficiency. The rules of intestacy are amended so that illegitimacy becomes, in general, irrelevant for the purposes of entitlement on intestacy; and this covers not only the succession of the illegitimate child to the property of others, but also the rights of others to succeed to the estate of a person born out of wedlock who dies intestate. Various reforms are effected which benefit persons born out of wedlock in relation to their rights of succession under wills and other dispositions, including entailed interests.

I should emphasise that none of these changes affect succession where a person dies intestate before the coming into force of these provisions, or succession under a will made before their coming into force. Secondly, none of these reforms will in practice alter the descent of the titles of honour or the devolution of property which goes along with such titles. I believe that will answer a series of questions which was put to me yesterday in written form by my noble friend Lord Sudeley.

Part IV of the Bill provides a new remedy by way of a right to seek a declaration by the courts available to those who seek to establish the facts of their own parentage. Applicants for this new remedy may have an emotional need to have the facts about their origins clarified. There may also be a question of future entitlement to property which turns on a dispute as to parentage. The best evidence to resolve such a question (such as blood tests) might no longer be available at the time when the property came to be distributed. In such cases a potential claimant might wish to seek a declaration of parentage at an earlier stage when this evidence is still available.

Part V of the Bill facilitates the recording of paternity on the birth certificate of a child born out of wedlock.

Part VI of the Bill deals with a number of miscellaneous and supplemental matters. Perhaps I may draw special attention to Clause 27, which deals with the legal status of a child born as the result of the artificial insemination of a married women by a donor (or AID). Where the woman is artificially inseminated with the semen of someone other than her husband, and her husband consents to this insemination, the clause provides that the child is to be treated in law for all purposes as the child of the marriage.

The policy of this clause has been endorsed in the report of the Warnock Committee, and indeed by the Law Commission, which has indicated to me that it would have preferred this matter to be dealt with as part of any comprehensive legislation on the issues discussed in the Warnock Report, which might mean putting it off for a long time. However, I consider that this clause should form part of this Bill. I do not think that a Bill which removed discrimination against illegitimacy as such would be a just Bill without clarifying the position of the AID child, at least to the extent approved of by the Warnock Committee. If need be, the clause can be amended later if it gives rise to difficulty, but at present I do not see much likelihood of that. To delay an agreed policy until full legislation on the Warnock Report could not, at any rate in my view, be justified.

I am only too conscious of the length of this explanation. The diversity, technical character and complexity of the provisions of the Bill have made this unavoidable, if I were to explain the proposals adequately. In conclusion, I shall only say that I regard the Bill as an important law reform which will help children born out of wedlock to have as normal a family life as possible. Because such children may be born in unstable family circumstances, it is of great importance that the law should not inflict any additional disadvantages on them. This Bill seeks as far as possible to remove the remaining legal disadvantages from which they suffer. I commend it to your Lordships. My Lords, I beg to move.

Moved, That the Bill be now read a second time.—(The Lord Chancellor.)